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Sunday, March 31, 2013

A lot of people think that probate is costly and takes a long
time, which can be true. There are plenty of horror stories about a
probate gone wrong. Indeed, some estates are tied up in probate for
years on end, as people fight over who gets what. In these cases,
probate can get quite expensive as the fees of the professionals
involved (such as accountants, appraisers, lawyers, bankers and so on)
add up.

The truth, however, is that this is not the usual way
things happen. Probate tends to be quite quick and usually does not cost
too much because nearly all estates are simple and small. The delay and
cost of probate depends mainly on the size of your estate and what type
of assets it contains. Obviously, a large, complicated estate, with
many assets, will result in a longer probate.

Nearly all states
have a simplified or streamlined procedure if your estate has a fairly
low probate value. If your probate assets fall below the state threshold
(normally under $20,000) you probably do not need to worry about
probate because it is likely to be fast and inexpensive. It could be
done in days and cost only a small filing fee.

However, if you
have more probate assets - above the simplified threshold (i.e. $20,000)
- then your estate will have to go through probate. And, especially for
larger estates, probate can be time consuming and expensive.

The
most common reason for the delay in living trust or probate is if there
are gift tax or estate tax issues. Certain things have to be sorted out
before everything can be distributed. Death tax returns are usually due
nine months after the death but tricky valuation issues could arise.

The
trustee (of a living trust) or the executor (if it is a will) cannot
distribute everything properly until he knows how much estate tax or
gift tax will have to be paid to the State or Federal government. It can
take up to eighteen months after filing the death tax return for the
federal and state taxing authorities to review the estate and gift tax
returns. If your estate is complicated, it could take several years to
complete the probate.

So, the first thing to figure out is the value of your "probate assets."

Everything
that is in your name when you die is potentially a probate asset.
However, some assets, that are in your name, upon your death, are not
considered probate assets. Common examples include bank accounts with
'payable on death' (POD) designations. If you designate someone as the
POD for your bank account, they will automatically get the account when
you die, rather than putting it through the probate. This also applies
to life insurance proceeds if you have designated a life insurance
beneficiary.

However, most assets, in your name, will have to go
through probate. One way to avoid that is to put the assets into a
living trust. Any assets you have in a living trust are in the trust's
name, rather than in your name, and therefore do not go through probate.

It
is important to realize that a living trust will not eliminate delays
caused by asset collection or tax issues but it will usually speed up
the distribution process because the probate court does not have to
approve everything done by the trustee. This is one impediment removed.

Living
trusts are very flexible and offer many other benefits as well. If you
are thinking about getting a living trust, you should think about both
the pros and cons before making any decision.

Saturday, March 30, 2013

California LLC formation, just like in all states is different.
Each state has their requirements, fees, and registered businesses.
Below you will find a list of tips for becoming an LLC in California.

1.Requirements:
If you need to know what the requirements are for California LLC
formation you should go to the state of California business website and
make sure that you meet them all before you try and go through with the
formation of a LLC in this state. Doing this beforehand will save you
time and grief later.

2.Fees: You are going to need money and
probably lots of it. Starting an LLC is not cheap. Actually, the kind of
business that you want to start will have a huge impact on the amount
of money that you will need for start up costs. For example, if you
wanted a California LLC formation to sell Avon products versus, open a
restaurant. These two have a huge price difference when it comes to
business fees. Also, don't forget about the fees associated with
becoming a LLC. Filing fees vary for each state, so check on those as
well.

3.Business Name: A decision you need to make for your
California LLC formation is what your business name will be. You have to
make sure that the particular name that you want is not all ready taken
by someone else.

4.Filing Paperwork- Filling out and filing your
California LLC formation paperwork is the most important step for
becoming a LLC. When the paperwork is filled out, this is where the
owners are named. Filing the paperwork puts your business on record with
the state of California. It legalizes it.

As you can see, these are all important aspects that should not go untouched in starting a LLC.

Friday, March 29, 2013

California probate law governs estate matters when a family member or
loved one passes away. Probate laws insure that creditors are paid and
that assets are properly distributed to the descendants, or "heirs," of
the deceased's estate. Probate is a long and expensive process, however
probate can be avoided through a carefully designed estate plan.

Methods Of Avoiding Probate

Anyone can avoid probate if plans are made ahead of time. Among the methods of avoiding probate are the following:

* Living trusts. Certain assets, such as a home, savings, and
investments, can be transferred into living trusts that do not pass
through probate upon death. The trust property is not part of your
estate because title to the assets is transferred to the trust. A
trustee has legal control over the trust property and is bound by
fiduciary duty to exercise that legal control for the benefit of the
beneficiaries named in the trust. After your death, the trustee can
quickly transfer the trust property to the beneficiaries you have
selected, without probate. Living trusts are popular and effective
because:

1. they are usually administered informally outside of the court
2. they are more flexible in resolving beneficiary disputes without court involvement
3. assets can be distributed faster than probate (usually in about 5 months after death)
4. they are less expensive to administer than probate matters
5. they are effective during periods of incapacity as well as at death
6. they are easily created.

* Joint tenancy. Assets are not probated if they are owned by two or
more people, termed "joint tenants" or similar wording. When a joint
tenant dies, the other joint tenant(s) take 100 percent ownership of the
asset. A joint tenancy takes priority over the provisions of a will or
trust.
* Small estates. Under the California Probate Code, estates of less than
$100,000 are exempt from probate. In determining this amount, some
assets are not considered probate assets, such as living trusts, life
insurance, IRAs, 401Ks, and assets held in joint tenancy. The assets in
estates valued less than $100,000 are turned over to the executor of the
will and distributed according to the will, outside of probate. If
there is no will, assets are distributed to the deceased's nearest
relatives (under rules of intestate succession).
* Spousal property petition. The spouse of a deceased person can file a
spousal property petition with the court to change ownership of the
deceased's assets to the surviving spouse. This procedure is a
simplified version of probate, which takes considerably less time and
expense than regular probate.
* Death benefit assets. Certain assets which have death beneficiary
designations avoid probate. These types of assets include life
insurance, IRAs, qualified retirement plans and some annuities.

Approved Cash Advance

If you are the beneficiary of a living trust, joint tenancy, or other
estate plan that was set up to avoid probate, Approved Cash Advance can
provide you with the funds you need now. Although much quicker than
probate proceedings, many of these avoidance methods can still take
time.

Thursday, March 28, 2013

If you are convicted of DUI, you may
want to expunge your DUI record in order to get a job, loan, house,
etc. Expungement refers to the process of removing or erasing your DUI
records. You are required to petition the court in order to get your
records expunged. This article discusses steps to clear your DUI record
by covering the whole process from petitioning to obtaining expungement.
Each state's expungement laws vary; therefore, this article gives you a
basic idea on the process.

DUI expungement process:

1. Where to file a petition for expungement?

You need to file a petition for expungement in the superior court in the county where your DUI arrest occurred.

2. What are the grounds for denial of expungement?

You can be denied for expungement:

- if you haven't completed probation.

- if you didn't show a good reason to expunge your DUI record.

- if you are convicted of severe felony.

- if a great deal of time has passed since your arrest or conviction.

3. What are the grounds for acceptance of expungement?

You are allowed to expunge:

- if this is the only conviction on your record.

- if you didn't spend any time in state prison.

- if you have rehabilitated yourself.

4. How to file for an expungement?

- Do you need a lawyer?

You don't necessarily need a lawyer
for expunging your records. It's just that this process involves a lot
of paperwork and if you have a lawyer by your side, he can give you
advice regarding that. If you don't wish to hire a lawyer, you should
learn all the procedures that are required to get this process done.

- How long does it take?

The entire expungement process could take anywhere from 4 to 6 months.

- What is the filing fee?

The filing fee may vary from $50 to $400 depending on your case and your state.

- What forms do you need to fill and where to get them?

You need to go to your county
courthouse and ask the clerk for the expungement forms. As mentioned
above the forms may cost around $50 to $400. The clerk may give you the
following forms: 1. Expungement petition, 2. Affidavit or proof of
service form.

5. What happens after you file the petition for expungement?

After you file the petition for
expungement, a copy will be sent to all agencies that have your records
like arresting agency, the county attorney, the city police department
etc. They may accept or refuse your request. If they accept, the court
will grant your petition without hearing. If they refuse, a hearing will
be held and you are required to attend. (This law can vary from state
to state). You will be notified of hearing date through the mail. In
some states, though, the court sets the hearing date, while in others
you have to pick the date. You must ask your clerk beforehand regarding
how your state's county court hearing date is set.

6. The Court hearing and decision:

Your petition for expungement may or
may not be granted. If you won the expungement hearing, you must check
after 60 days to see for yourself whether your records show up during a
criminal record check. The 60 days period is when the court orders all
the agencies to seal your record. However, if you lose your hearing, you
may need to ask for an expungement once again.

Wednesday, March 27, 2013

The advanced healthcare directive, as the name suggests, is a set
of instructions made out in advance about the kind of treatment you
should be given in the future should you be unable to express your
wishes at that time.

The following 5 features will help you in better understanding of this directive.

•
Instructions: There may come a time where you may be unable to
communicate the kind of treatment you want due to age factors or a
health condition that may render you unconscious or incapacitated to
make sound decisions. A set of instructions made beforehand will come
into effect in such situations and guide the healthcare personnel on the
kind of treatment to be given or even what must be avoided. These
instructions can be generalized or more specific, mentioning certain
medications or procedures.

• Agent: You also have the option of
appointing an agent who is generally a spouse, anther close member of
the family or a close friend who will have the authority to make
decisions regarding the treatment on your behalf. You have to
communicate your wishes to the appointed person clearly and provide the
required authority on paper which will become effective if you are
unable to take your own decisions, just as in the case of instructions.

•
Content: An ideal directive is the one that combines both the set of
instructions as well as the document that appoints an agent to make the
directive effective in any kind of situation. The details of the
instructions or the extent of power to be given to the agent will of
course be your personal decision; however, you must speak with your
family, the agent, healthcare staff and any other concerned personnel
before finalizing the same. The directive has to be in writing and must
bear your signature along with the required witnesses. Once finalized,
the directive must be distributed to all the concerned parties,
especially your doctor.

• Implementation: An advance healthcare
directive can be a very effective document to ensure a certain quality
of life even in the future and can prevent distress to you and your
family should any such condition arise. But poor awareness has resulted
in the limited implementation of this directive and in several cases the
content of the directive has made it ineffective or caused conflict
with the right treatment. Medical organizations or providers can help to
promote the directive by either educating the patient and family or
appointing trained volunteers who can guide you in making an effective
and valid directive.

• Evolution: The concept of the advance
directive has come a long way since the time you could make a living
will containing your instructions or creating a healthcare power of
attorney for appointing an agent, to the advance healthcare directive
combining both. The Five Wishes document is another well known
advancement in this regard.

Advance healthcare directives have
been adopted throughout the country; however, different states may have
their own specific forms and requirements for such documents.

Tuesday, March 26, 2013

An advance directive outlines what wishes your doctor must follow if you
become unable to make your own medical decisions. When you're admitted
to the hospital usually the staff will ask you if you have an advance
directive, or you can hand your doctor and hospital staff a copy
yourself if they don't ask.

An ideal advance directive would be to describe the kind of treatment
you would want depending on how sick you are at the time. Also, an
advance directive is made to describe what to do if you have an illness
that you most likely have no chance to recover from, or if your in a
coma what kind of care you wish. The most important thing on an advance
directive is what you don't want your doctor to do otherwise a doctor
will usually do everything in his power he feels is necessary. However
it works both ways, you can demand certain treatments no matter how ill
you become.

The laws and forms on advance directives are usually different for every
state, its important you get your state's specific form that conforms
to your state's laws.

The good thing about an advance directive is that you don't stress out
your family and loved ones by putting the burden of making medical
decisions for you. If your 18 years or over you can prepare an advance
directive.

A do not resuscitate order is like an advance directive but very
specific. A do not resuscitate order is made for you to request if you
want cardiopulmonary resuscitation (CPR). Usually if you don't fill this
form out the whole hospital staff is trained in CPR and also trained to
revive you using CPR if your heart stops or you stop breathing. Do not
resuscitate orders are accepted in all states.

Monday, March 25, 2013

The LLC and the corporation are the
two competing choices when it comes to deciding on a legal entity for
running a business. Both offer the same level of personal asset
protection for the owners of the business.

While the corporation has been
around longer and so has a longer history of legal enforcement of its
liability protection, the LLC protection provisions are based on the
same principles and language of corporate statutes. What this means is
that the courts will apply the same precedence by analogy when it comes
to limited liability companies.

Management

A corporation must have a central
body of management structure. This is accomplished with a Board of
Directors. Every corporation has a Board and its members are elected by
the shareholders to serve terms. The Board has the authority to manage
the company. Generally the Board will hire officers to execute the day
to day operations based on the overall decisions agreed to by the board.
Shareholders in their capacity as shareholders do not have management
authority.

The LLC is a flexible shell when it
comes to management. There are no required structures and a central
management body is not required. A limited liability company can be
member managed - here, the owners (members) have management authority by
virtue of being members. However, this entity can also be set up
similar to a corporation and can create a Board of Managers as the
management authority. In summary, an LLC can start with a blank slate
when it comes to management structures and can define how it wants to be
governed based on the specific circumstances.

Ownership

Both entities issue a unit of
ownership to its owners. For a corporation, shares of stock are issued
while membership units are given by a limited liability company. For a
corporation, every share must represent an identical unit of ownership.
For an LLC, there is the option to define different rights and
obligations to members separate and apart from the membership unit.
Corporate shares can be publicly traded if the business ever gets big
enough to want to go public. There is no option for public markets for
an LLC. It is more suitable for privately held businesses.

Management Structure Options

A third of the benefits of an LLC is
that it is a flexible entity when deciding how the business will be
managed. The members of a limited liability company can choose between
two simple management structures: (i) member managed or (ii) manager
managed. The laws afford this benefit by allowing members great
flexibility in deciding how they want the limited liability company
business to be managed and what rules to impose upon the business when
it comes to governance and management.

Paperwork

The corporation laws of each state
generally mandate that a corporation hold certain meetings and document
corporate decisions with shareholder or director votes and resolutions.
The limited liability company is not legally required to maintain as
much paperwork or hold mandatory meetings, but it is always a good idea
to engage in some governance and record keeping. Still, it is is
preferred by busy business owners because the owners can focus more on
operating the business without worrying about a lot of formalities or
maintenance.

Tax Matters

The limited liability company beats
the corporation hands down when it comes to taxation. This is because
the IRS lets it be taxed however it chooses. It automatically qualifies
for pass through, single layer of taxation but it can also elect to be
taxed as a C corporation or an S corporation. The corporation by default
is subject to double taxation which means that profits are taxed twice.
It does not have any automatic qualification of a single tax structure,
but there is a limited option to elect S corporation status if a
corporation can meet and continue to maintain a laundry list of
qualifications and limitations.

In essence, the LLC is more of a
small business vehicle while the corporation is for larger businesses
and ones with a larger investor base.

Sunday, March 24, 2013

A living trust is basically a trust
that is created when one is alive rather than being created when one
dies. This legal agreement is drawn to ensure the property of an
individual is dispersed as per his wishes when he dies. The individual
transfers the ownership of assets to the trust. He then chooses a
trustee who administers it. The trustee could be a friend, family
member, a law firm or an attorney among others. The trustee holds the
legal title of the property on behalf of the beneficiary.

Since this agreement is entered into
when the owner is still alive, it can begin benefiting him immediately.
It is revocable meaning that one can make any desired changes. It shows
how the income and assets it has earned should be distributed after his
death. If the owner is the trustee and he becomes disabled or
incapacitated a successor trustee can manage the financial affairs.

It can be used for all kinds of
properties. Just like the will, it offers quite a broad planning
flexibility. For it to work properly it is important to ensure that all
the property has been transferred from the name of the owner to that of
the trust.

There are many benefits of having
such an agreement. Firstly no property registered herewith will be
subject to probate. Probate is a process supervised by the court that
involves distributing your property to your inheritors and paying off
your debts. With this kind of agreement, your assets technically are not
yours any longer as the trust owns them. So, your loved ones are saved
the hassle of probate which can be expensive and time consuming.

If one is able and willing, he is
allowed to manage his own trust. In this case, he makes a provision for
the successor trustee to take over after his death. Upon your death, the
successor trustee simply transfers all ownership to beneficiaries named
in the trust. After all the property has been transferred to the named
beneficiaries, the trust ceases to exist.

Another benefit is that this
document offers some level of privacy. This is because the terms of this
agreement are not made public upon the death of the owner. This means
that the deceased individual's debts, assets and inventories remain
private. The estate is then distributed privately.

This is an easy way of transferring
assets to your inheritors free of probate in a matter of weeks or a few
months of your death. It is especially ideal for people with large
estates. A married couple would also find it ideal at it could offer
savings on income and on estate taxes in form of a joint living trust.

Saturday, March 23, 2013

When you and your spouse are seriously considering divorce,
you'll find that there are several options for dissolution of marriage
for you to consider, depending on your situation. In many states the two
most common types of divorce are contested and uncontested.

Uncontested

In
an uncontested divorce, both parties are able to work out the divorce
terms without any input from the court. More divorcing couples prefer an
uncontested divorce simply because it is generally less stressful and
is less complicated compared to getting a contested divorce.

Of
course, not all couples may benefit from an uncontested divorce. Couples
who are in conflict with one another may have difficulty agreeing to
common decisions brought about by a divorce, such as child custody,
child support, spousal support, visitation, and division of assets.

An
uncontested divorce usually involved drawing up a separation agreement
mutually agreed upon by the divorcing parties, filing for dissolution of
marriage, and attending a hearing. This entire legal process can take
less than two months.

In some situations, however, an uncontested
divorce does not go as planned and thus transitions to a contested
divorce. Should this occur, then the services of a capable and
experienced divorce attorney may be needed to ensure that your rights
are protected at all times.

Contested

A
contested divorce, on the other hand, is a type of divorce where both
parties are unable to reach an agreement when it comes to all essential
divorce terms. Contested is significantly more stressful and complicated
compared to uncontested or mediated divorces, and could take several
months or even years to resolve.

In a contested divorce, a court
judge resolves the case if both parties are unable to resolve all
contested points before the scheduled trial date. The judge bases the
decision on the facts of the divorce case, including marital documents,
records, and testimonies. Common parties who testify at the trial
include you and your spouse, as well as witnesses who are testifying on
your and your spouse's behalf.

Contested divorces usually always
require the hiring of a family lawyer. It is always advisable to seek
the counsel of an experienced lawyer in your area if you think your
divorce will require going to trial.

Friday, March 22, 2013

Living trusts are a much talked
about topic in the field of estate planning, and for good reason. You
may have heard financial planners or attorneys mention these trusts as a
"must have" item in your planning portfolio, but may be confused as to
what a living trust really is, what it accomplishes, and most
importantly, if you really need one.

What Is A Trust?

A trust is an arrangement in which
one person, the trustee, holds legal title to the property of another
person or group of people, the beneficiaries. Every trust must have at
least one trustee, one beneficiary as well as property which is placed
into trust, called the corpus. A trust document sets out the rules that
the trustee has to follow when managing, distribute, and generally
overseeing the corpus. A living trust, also known as an inter vivos
trust, is a trust which is set up by the settlor (person creating the
arrangement and funding the trust) while he/she is still alive.

How Does This Benefit Me?

A. Reduces Cost: When
a person passes away, assets titled in his/her name pass either under
the will or by the laws of intestacy which dictate how assets are
distributed if there is no will. Either process requires the
intervention of the local Surrogate's Court and, most likely, an
attorney. An attorney will typically charge 3-5% of the total value of
the probate estate which is in addition to a similar amount charged by
the executor/administrator. With a revocable living trust, there is a
slightly higher initial fee to set up and fund the trust, but it is
usually a fraction of the cost of probating a will.

B. Saves Time: By
going through the judicial process of probate, the validity of your
will is open to challenges by disinherited heirs and other interested
parties. Intestate heirs, also known as distributees, can challenge the
validity of a will if they stand to receive more money if there had not
been a will at all. The probate/administration process can protract the
transfer of assets by months in the best case scenario and years in the
worst. This can delay getting your assets to those who need them and
costs your estate unnecessary legal fees. Since a revocable living trust
is not a public document and does not need to be filed with the court
in order to distribute assets, there is less unnecessary delay in
transferring the assets since the trust does not need to be probated.
You will not have to waste time waiting to get letters testamentary
appointing an executor since a successor trustee is appointed
automatically by the trust. Additionally, while a living trust can be
challenged, it is more difficult to do so than with a will. All this
means that your final wishes will be executed as quickly as possible.

C. Give You Control: Since
a living trust will be prepared by you, typically in consultation with
your attorney, you retain full control to specify what will happen to
your assets when you pass away. You set the terms, pick the trustees,
and direct them how/when to invest, manage, and distribute your assets.
Best of all, you retain complete control of the property in the trust
while you are alive by naming yourself as trustee. Since the trust is
revocable, you can amend or revoke the entire trust any time you wish.

Thursday, March 21, 2013

A Medical Power of Attorney gives specific instructions, prepared in
advance, that are intended to direct medical care for an individual if
he or she becomes unable to do so in the future. Plainly speaking, a
Medical Power of Attorney is made in anticipation of a medical
emergency. If you are in an accident or suffer a disease or disorder
that may leave you incapable of making a sound medical decision, a
Medical Power of Attorney permits you to choose in advance who will
represent and enforce your interests. The person authorizing the other
to act on his behalf is the "principal" and the one authorized to act is
the "agent".

A Medical Power of Attorney should be given to someone whom you trust
unreservedly; this is an individual who will be making decisions for you
when you are incapacitated, even if you are not on life support or
terminally ill. However, an agent does not have the authority to act
until the principal's attending physician certifies in writing that the
principal is incompetent.

A Medical Power of Attorney is not legally effective unless the
principal signs a disclosure statement that he or she has read and
understood the contents before signing the document. If the principal is
physically unable to sign, another person may sign the document in his
or her presence and at his or her directive. Two qualified witnesses,
who are competent adults, must witness the procedure. At least one of
them must not be related to the principal, the principal's attending
physician or the attending physician's employee, entitled to a part of
the principal's estate, an individual who has a claim against the
principal's estate, or an officer, director, partner or business office
employee of the healthcare facility.

An individual may revoke the Medical Power of Attorney by notifying
either the agent or the principal's health care provider of his or her
intent to revoke the document. This revocation will take place
regardless of the principal's capability to make sound medical
judgments. Further, if the principal executes a later Medical Power of
Attorney, then all prior ones are revoked. If the principal designates
his or her spouse to be the agent, a divorce revokes the Medical Power
of Attorney.

An agent, acting in good faith, will not incur criminal or civil
liability for a medical decision made under a Medical Power of Attorney.

Wednesday, March 20, 2013

People are often confused about power of attorney and if they
need it. The simple answer is nearly everyone can benefit from these
legal forms. However, it's advisable to become informed about the
various types and their uses.

Power of attorney forms are needed
to designate an agent to conduct business or personal transactions on
your behalf. They are also required to authorize agents to be involved
with healthcare decisions if you are unable to communicate.

There
are laws in place that forbid unauthorized people from accessing bank
accounts, using credit cards, or buying or selling titled property. The
only way to give permission to others is to prepare power of attorney
forms.

The type used depends upon the transactions agents are
involved with. Some forms let agents perform a wide variety of tasks,
while others are limited to a specific duty. Each has a unique purpose,
but can be customized to address the needs of each individual. Three of
the most popular are general, limited, and medical.

General power
of attorney allows agents to carry out many duties. They are often used
by companies to ensure business operations can continue in the absence
of senior management or partners.

They can also be used to let a
company or professional act as a negotiator. For example, if a person
owes money to creditors or the IRS they can hire a lawyer to enter into a
deal. Or, a real estate investor could authorize an agent to buy and
sell properties or act as a property manager.

Power of attorney
forms normally do not have to be recorded through local courts. However,
if they are used in association with real estate transactions then they
might need to be filed with the county clerk's office. Furthermore,
whenever agent powers are revoked another POA has to be recorded to
document removal of privileges.

Limited power of attorney is used
when agents are responsible for performing a specific task. Once agents
carry out the assigned task their privileges are automatically revoked
and the form is null and void.

Duties can range from basic tasks,
such as balancing a checkbook to complex tasks, such as selling an
automobile or real estate. As a rule of thumb, if a transaction requires
your signature a form should be created to let someone else take care
of things if you're unable to do so.

Medical power of attorney is
one of the more important forms. Every adult should create one to ensure
they have a voice in their medical care, even if they can't speak. This
form grants agents the right to be involved with medical decisions
regarding your care. It is also used to define any lifesaving procedures
you desire or are against.

Agents do not get involved until a
person is declared incapacitated by a medical doctor. It is advisable to
openly communicate your wishes regarding treatments or procedures.
Doing so will assist them in making choices that are in alignment with
yours.

For the most part, spouses and relatives are designated as
healthcare agents, but the choice is completely up to you. The only
requirement is that agents are at least 18 years of age.

Monday, March 18, 2013

What happens if you are out of town
and some kind of business has to be transacted? Who makes medical
decisions when someone is in an accident and needs surgery?

There are many situations where it
is necessary to make medical, personal, and financial decisions for
another person. Many people assume their spouses or children will
automatically be allowed to make medical, personal and/or financial
decisions for them, but this is not necessarily so.

Even though we all know of
situations where health care providers and others have turned to the
immediate family to make decisions under these circumstances, actually
the law provides that only someone with the legal right to make such
decisions -- or otherwise act on behalf of someone else -- can do so.
You don't want to take chances on how things might go in a medical
emergency. And, certainly, when it comes to financial decisions, or
taking action in court or banking situations, legal authority to act is
imperative.

The basic documents that provide
such authority are known as Advance Directives and include a Power of
Attorney, a Living Will, and a Health Care Proxy. (1)

In the absence of Advance
Directives, a Guardianship proceeding would then have to be brought in
Court to have the Judge appoint someone to make such decisions. To avoid
the necessity of a costly and lengthy Court proceeding, and to make
sure that your wishes are expressed and the authority to carry them out
is given, Advance Directives must be put into place.

Power of Attorney

A Power of Attorney is a legal
document that allows one person (called the principal) to appoint
someone else (called the agent or attorney-in-fact) to act on his or her
behalf. The powers that can be exercised by the agent can be broad or
narrow; the principal chooses them, in advance. You might, for example,
authorize your agent to do a specific thing (e.g., sell your house) or
you might give the authority to do any legal act you could do yourself.

There are three different types of Power of Attorney:

A conventional Power of
Attorney gives the agent whatever powers the principal chooses, often
for a specific period of time, beginning when it is signed.

A durable Power of Attorney
stays in effect for the principal's lifetime, beginning when it is
signed. It contains specific language stating that the agent's power is
to stay in effect even if the principal becomes incapacitated.

A springing Power of
Attorney "springs" into effect upon a specific event, such as when the
principal becomes incapacitated. It must be carefully drafted so that
there is no difficulty determining when the springing or triggering
event has occurred.

By signing a Power of Attorney, you
are not giving up your right to act in your own behalf; you are instead
empowering your agent to also act when and how you have directed. Also,
it's important to note that you can revoke, or cancel, a Power of
Attorney at anytime, and you do not need to give a reason for doing so.
If you do make changes to your Power of Attorney it is a good idea to
let all involved parties know of your decision - particularly your
appointed agent and anyone they may be dealing with, as well as your
attorney.

All Powers of Attorney automatically
end when the principal dies. Consequently, your agent's powers do not
overlap with those of the executor of your estate. Choosing an agent is
an important decision. You need to trust the person completely, and you
need to make sure they are capable of performing the job.

Living Will

A Living Will allows you to specify
the kind of treatment you want in particular situations, especially what
happens if you are terminally ill. For example, you might choose to
specify that you do not want to be treated with antibiotics if death is
imminent. Or that treatment is to be withheld if it only serves to
prolong your death. You can ask that maximum pain medications, however,
be given even if they hasten death.

Health Care Proxy

The Health Care Proxy identifies the
person you've chosen to make medical decisions for you if you become
unable to do so yourself. It is activated anytime you're unconscious or
unable to make medical decisions.

In choosing an agent, keep in mind
the following: Most states disqualify anyone under the age of 18, as
well as and your health care provider and its employees, to act as your
agent. Furthermore, the person you name as your agent must be willing
and able to advocate on your behalf, deal with conflict among friends
and family members should it arise, and must understand and respect your
wishes. Needless to say, the person must be someone you trust with your
life.

Although death is a difficult
subject to bring up, it is a good idea to discuss these issues with
friends, family members, and your agent to ensure that they understand
your values and beliefs.

Sunday, March 17, 2013

If you would like to have legal guardianship over an incapacitated
individual, you need to petition the probate court that has jurisdiction
regarding your case. The probate court that serves the area where the
person you want guardianship over resides is the court with
jurisdiction.

There are many reasons why you might want guardianship over an
individual. Perhaps the person is not capable of taking care or him or
herself. In many cases children of elderly parents petition the court
for guardianship over their parents who are no longer to care for
themselves.

As the legal guardian, you will be responsible for that persons well
being. You will have to make living arrangements that are the least
restrictive possible. You cannot simply place that person in a nursing
home when the person is able to live an assisted living facility.

You will need to make sure the person is receiving the proper nutrition.
You will be responsible for his or her medical care. That is, you must
make sure that he or she visits the doctor regularly, and that his or
her medication is available.

Of course if you are asking for guardianship for a loved one, then you
will naturally take good care of the person you are responsible for. But
you do need to demonstrate to the court that you are capable of this
responsibility before the court awards guardianship.

Your care will also be subject to regular court review. You will have to
provide documents and other evidence demonstrating that you are
providing proper care and that you are respecting the requests of
legally incapacitated person.

In some cases the court will have to appoint an emergency guardian. This
need could arise if someone is severely injured in an accident and
cannot care for himself. This could be a temporary situation until that
person recovers and resume normal responsibilities. Even though this is
an emergency court appointment, the guardian is still under the legal
duty to provide the necessary care required under the law of
guardianship.

When you apply for guardianship, you will need to include in your
petition medical records detailing that persons incapacity and also
sworn testimony of interested parties who agree that you should be
appointed legal guardian by the probate court. The court will appoint an
objective person to meet with the incapacitated person in order to
evaluate that persons capacity regarding your request for guardianship.
Once you are approved you will have legal guardianship over the
incapacitated person.

The information you obtain in this article is not, nor is it intended to
be, legal advice. You should consult an attorney for individual advice
regarding your own situation.

Saturday, March 16, 2013

Death is inevitable to everyone in this world, and yet few people
prepare for that eventuality in a legal manner. Regardless of the
circumstances, the possessions and last wishes should always be
documented with a will in order to avoid difficulty or problems for
those left behind. Typically, if someone has a will, it will go to
probate after the death. Many people wonder, "What is probate?" It is
the first step in executing the last wishes that are included in the
will. It means that it is the start of dispersing the items or finances
to whom they will belong.

The probate process can sometimes be a long and drawn out process,
simply because there is the inevitable red tape that goes along with any
procedure of this nature. For example, in the midst of this process,
usually begun by an attorney, creditors must be informed, a probate
court may need to rule on the validity of the will, assets assessed and
dispersed, among many other things. In addition, sometimes there is a
dispute over the contents of a will, and an attorney can help straighten
out a legal mess before it gets started.

There are many ways that you can look at the probate process. It can be
what is happening while the will is being looked over by judges and an
attorney, or it can be the process of distributing the worldly goods as
mentioned in the will. The taxes must be taken care of first, as well as
any debt, so the rules must be followed. Without a will, however, this
makes the process much more difficult, and sometimes the state in which
the deceased lived gets to decide the property and asset dispersal. If
you do not yet have a will for yourself, you need to get one.

Unfortunately, even death is now a bureaucratic mess that can involve
miles of red tape and can sometimes take years to straighten out.
However, by preparing for the worst, you can protect your estate and see
that it goes to the people you want, and is not distributed according
to a random act by the state. While it is always advisable to have a
personal representative named in the will, it is also important to have
an attorney double check every bit of the documentation to ensure that
it will be complied with and is compliant with state laws.

Friday, March 15, 2013

A notary public is a certified official that is capable of acting as a
reliable, impartial witness for the signing of important documents. A
notary public is also able to administer oaths and may have other
official capacities depending on the jurisdiction.

In the United States, most notary publics charge a nominal fee for their
services. Notary publics dispense their official duties by marking
documents with their signatures and a distinctive embossed stamp or
inked seal. A document which has been witnessed by a notary public has
been notarized.

Notary Public: Benefits

The benefits of using a notary public are simple. By certifying the
veracity of the signing parties, the notary provides an inexpensive way
for organizations and individuals to enter into contracts and conduct
business with a reasonable assurance that the notarized documents will
be recognized in court.

Using a notary public is a way to protect against fraud, as the notary
is responsible for requiring the signer of a legal document to establish
his or her identity. Although this is not conclusive proof of identity,
it provides reasonable evidence of identity so that every day business
can be conducted. A notary also acts as a disinterested third party for
parties entering into a legally binding agreement.

Notary Public: More Info, Please

HISTORY

The concept of a notary is as old as the Western concept of civil law,
which has its beginnings in the courts of Rome. As the Roman legal
system became more codified, the law courts became more and more reliant
on the use of scribes for maintaining the court records. These scribes
developed a system of legal shorthand, called notae. In time, a legal
scribe earned the name notarius.

The name has been handed down through the centuries, living on past the
fall of the Roman Empire. During the Middle Ages, the role of the notary
public was often taken by the clergy, who were charged with recording
private and public transactions, as well as drawing up official
documents.

ROLE

Today, a notary public's duties are somewhat different than the duties
of a notarius. In the United States, a notary public has been authorized
by a specific body, usually a state government, to perform the services
of a notary. These duties are usually confined to the witnessing of
documents and the administration of oaths. Some states also allow notary
publics to certify copies of official documents

Two of the most common documents that a notary public will witness have
to do with the sale or transfer of real property and the granting of
power of attorney. A few examples of the documents that a notary public
can officially witness include the following:
§Acknowledgements
§Affidavits
§Jurats
§Oaths
§Formal protests

Some states give notary publics significantly more duties. For example
notary publics in Louisiana are able to perform most of the duties that a
lawyer can provide with the exception of representing another person
before a court. Three states--Florida, Maine and South Carolina--allow
notary publics to solemnize a marriage ceremony.

Some states will require the notary public to maintain a record of
official acts. Although keeping a journal of official acts performed is
not mandated by all states, many professional notary organizations
recommend that all notaries keep records of their actions.

SIDEBAR: Legal Language

Ever wonder why legal documents are about as clear as mud?

The wording of legal document has to abide by certain customs and
restrictions in order to have any binding effect in a court of law. This
wording is called acceptable language.

SIDEBAR: Documents and Definitions

Know your jurat from your acknowledgement? Here are the definitions of some of the common documents handled by a notary public.

Acknowledgement: A legal declaration of an act.
Affidavit: A sworn statement of fact
Jurat: A part of an affidavit containing the oath or affirmation.

Becoming a Notary Public

In the United States, each state is responsible for commissioning notary
publics to practice within its jurisdiction. In general, the
requirements for becoming a notary public are relatively easy to meet.
In most states, an applicant must be at least 18 years of age. Most
states charge a small fee as part of the application process. Some
states require satisfactory performance on an exam before commissioning
the notary officer. In some states, the notary is required to hold a
bond as insurance in case of a lawsuit leveled against the notary
public.

Thursday, March 14, 2013

There are a lot of people that are ditching the traditional route
of making money, and looking for alternatives. One of the biggest
alternatives that have been around for a great deal of time is the
formation of a business. Whether you work online or you're working on
building a brick and mortar store, you'll find yourself looking at
different options to make things legal. Sure, you could go at it without
forming a real company, but there are going to be issues that you will
deal with on a legal level that could close you down fast. Consider the
following things before you can fully understand whether forming an LLC
is right for your needs as an entrepreneur.

The first step to
understanding whether an LLC is right for your business is to fully be
aware that you are going to start a business. Some people are OK with
working without the banner, but that will mean you'll have to pay more
taxes, and your personal finances can be affected if you get in legal
trouble of any kind. If you're dead set on starting a legitimate
company, than that could be the first sign that this option is right for
you.

As mentioned above, when you form this type of company you
will be thrilled to know that your assets are going to be protected.
What that means it that you are not going to be personally responsible
for any debts that you incur as a business, and creditors will have to
go at your business and not any personal money you might have such as
savings, a home, or even a car. When you're working alone, you are going
to have to defend yourself tooth & nail to keep your assets.

When
it comes to forming this structured option, you will find that your
taxes aren't going to be the same. You won't have to pay at the business
level at all, and that means that you can get your income and losses
passed through and your regular personal tax statements will apply. All
the taxes that you will have to pay or report will come down to the
personal level and will not go through a business funnel, which is a
great thing overall.

The number one thing that you will want to
consider when starting this company is the sheer fact that you will have
authority in regards to whatever business you're in. No matter what you
do, no matter where you are in your career path, you will find that
those that have a full fledged LLC have a certain authority that others
do not. Your competitors that do not form a company and are freelancing
will start to look like amateurs and hobbyists compared to you, so
you'll inherit a great deal of work that you might not had previously.

The
above issues are important to consider w hen you start to question
whether or not an LLC is right for you. Take your time considering your
options and make sure that you're fully aware of what you're up against
when forming such a company. You'll find that the benefits are quite
good overall.

Wednesday, March 13, 2013

When you are tired of working for someone else and you want to
start your own business you will often times be faced with several
questions. If you do things the smart way you're going to have to decide
whether or not you go for an LLC or a sole proprietorship moving
forward. There are many differences between the two, and figuring out
which one will help you out the most can be a daunting task, which is
why it's important to look at some pros and cons on each side.

First
and foremost, if you're going to conduct business on your own, without a
lot of outsiders coming in and helping you, you're going to want to
start a sole proprietorship. In this type you will be doing everyone
from marketing to financial matters on your own. You could get an
employee to help you down the road, but often times people focus on this
type if they are dealing with businesses that are highly personal and
have low risk of getting into legal issues that many will have to face.

The
downside to going at it solo is that you could be liable for many
issues and if you get sued or someone gets injured your place of work,
you will be liable and your assets can be seized. You could lose all
your profit, plus your personal home, bank account, and anything else
you have in your possession. This poses a danger to most people, which
is why they opt for another way to go about doing business.

The
second way to get your business going is to form an LLC. This type of
company will allow you to structure your business as a separate entity
from who you are and what you personally do. Even if you're the only
owner, you will have a set of books and documents that will outline your
role within the company, and you will have to manage things in a method
that is outside of just being "personal" about it.

The upside to
this option is that you will not get sued or be responsible on a
personal level if something within your business goes wrong. If you get
sued and you lose, your assets will remain under your custody, however,
your business will have to foot the bill. Only the profits and accounts
that are possessed as the business will be liable for anything. This is
why many people go with this option, as it helps keep personal and
business options away from each other.

Forming an LLC also pays a
different type of tax than having a sole proprietorship. It can also be
set up in another state where the cost of doing business can be quite
less than other areas. An LLC can act with several owners, one owner, or
a variety of different manager styles, which makes it a versatile
option moving forward.

Whether you go at it alone or try to form
an LLC, you'll see that the two options abound for those that want to
start a business.

Monday, March 11, 2013

Most people have heard the word probate before, but they might be
wondering 'what is probate?' The probate process can refer to several
things. The probate court determines whether or not a will is valid. If
an executor is not named in the will, the court will assign an executor
to perform those duties. However, the entire process of administering
the estate of the deceased according to the will's instructions can also
be referred to as probate. Many people think that an executor simply
reads the will and hands out the bequests to the heirs. There is so much
more involved in the duties of an executor during probate.

The actual court probate process is only a part of the responsibilities
of the will's executor. The first duty is to file a petition to start
probate in each of the states where the deceased owned property. Because
each state has slightly varying probate laws, the answer to the 'what
is probate?' question will change a little depending on a specific
state's legal code. However, there are some common events between states
when it comes to processing wills and other estate administration.
Before the executor of the will can even be formally appointed or
approved, a petition has to be filed, a notice of petition must be
published with a certain amount of lead time (usually at least 15 days),
the legal documents must be given to the judge for approval, and the
concerned parties (such as beneficiaries) must be notified.

Following these notifications, the court hearing will formally begin the
probate process and approve the named executor of the will. After the
court hearing, the executor needs to inventory all of the deceased's
assets. This information has to be filed with the probate court. Next,
all creditor's claims are addressed and paid off. The IRS also has to be
paid. It is the executor's responsibility to file all taxes, including
income, estate, and others, by their respective deadlines. The timelines
are not adjusted due to the death of the taxee. What is probate? It's
probably a lot more than most people realize.

Once all debts and taxes are paid, the executor of the will files a
petition for the judge's approval of the distribution of assets to the
beneficiaries. The concerned parties are notified, and there is a court
hearing where the judge approves the distribution of assets. Finally in
the probate process, the executor transfers those assets to the
beneficiaries. These steps are the main answer to the 'what is probate?'
question.

Sunday, March 10, 2013

Many people do not understand
the difference between a living will and a final will and testament.
While both are very important legal documents, a "Living Will" is
completely different form a "Final Will and Testament". A "Final Will
and Testament" specifies to whom individuals will leave personal assets,
property, valuables, or custody of minor children. A "Living Will" is
for use in a health care aspect. Individuals without tangible assets may
still wish to enact a "Living Will".

So, what is a "Living Will" anyway?

A living will or advance directive generally directs health care
providers whether or not to use heroic treatments or extraordinary
measures that would delay death, such as breathing machines
(respirators/ventilators), or to stop such treatments if they have been
started. Individuals can also specify their views about giving food and
water through a tube (artificial nutrition or hydration), as well as the
length of time such treatments are to continue.

Who carries out these wishes?

The party responsible for following specified wishes is completely
up to the patient. A Health care Power of Attorney is given to the
person named to make medical decisions predetermined by the patient.
This person is called a "health care agent" or "proxy." The agent or
proxy is the voice of the patient and voices only the feelings and
thoughts that the patient has expressed. They are to present decisions
in an unbiased manner, regardless of their own viewpoints.

Will physicians and staff ignore the patient and go directly to the Power of Attorney or Proxy?

No. Make no mistake, patients' thoughts, feelings, and values take
priority over anything else. Health care providers will provide any
available information so that patients may make an educated decision,
but the final decision rests with the patient and those wishes will be
respected. A health care Power of Attorney or Proxy only becomes
effective in the event that is physically or mentally unable to make
their own choices known.

What happens if there is not a Living Will or Advance Directive in place?

The decisions of health care become the responsibility of next of
kin, even if the patient would not want that person to be involved. If
the patient does not have proof of their wishes outlined, there is no
way for anyone to know what they would have wanted.

The topic of
living wills or advanced directives may be one of the most uncomfortable
conversations a family ever has, but the only way to ensure that
everyone understands and respects each others' wishes is to maintain an
open dialog. This discussion will also relieve some of the stress and
tension from grieving family members during a difficult time.

Saturday, March 9, 2013

Establishing the extent of, and limitations to, the agent's power
is essential to a successful relationship between the two parties. An
agent can be anyone the principal trusts (who is typically 18 years old
or older) to carry on the principal's important matters, which may
include financial, personal tax, and real estate matters. The letter of
attorney may identify alternative agents if the named agent dies,
becomes legally disabled, resigns, or refuses to act on behalf of the
principal. A letter of attorney sets the standard for the amount of
authority that the agent will have. It should be very specific about
what powers are being granted and what limitations are placed on these
powers.

With a durable letter of attorney, the document typically
states that the transfer of power is effective immediately or when the
principal is unable to coherently make decisions on his/her own due to
some disability or incapacity. If the durable letter of attorney is to
become effective when the principal becomes disabled or incapacitated,
the definition of "disability" and "incapacity" should be included in
the power of attorney, along with a method of showing the existence of a
disability or incapacity. This helps the agent and third parties know
when the powers pass to the agent. This is important because some third
parties may be cautious about recognizing the agent's power to act on
behalf of the principal. A statutory power of attorney, simply tracks
the language from the State's letter of attorney statute. To make a
legally binding, it must comply with all state laws, and should be
signed, dated and notarized by the principal.

Medical power of attorney
assigns an agent to make health care decisions for the principal when a
physician certifies in writing that the principal is no longer able to
make these important decisions. For example, a person is unable to make
health care decisions while in a severe coma. Despite the significant
grant of power, an agent is obligated to follow the principal's
instructions when making decisions on his/her behalf and the principal
may revoke the authority granted to the Agent. Two witnesses must be
present for the signing of the written medical power of attorney, and
there are limitations on who may serve as witnesses.

The letter of
attorney is a valuable tool that can provide the principal with the
peace-of-mind that his/her affairs will be taken care of. If you would
like to know more about durable, statutory and medical power of
attorney, consult with a trusted legal professional.

Friday, March 8, 2013

Mention estate planning and most people think of Wills and
Trusts. But a good estate plan includes things to help you if you become
incapacitated (Alzheimer disease, dementia, coma, vegetative state,
severe illness, etc.). Three documents should be considered: an Advance
Healthcare Directive, a Power of Attorney for Finances, and a Trust. The
first two are vital. The third is usually advisable, but may not be
necessary in all cases.

An Advance Healthcare Directive is
sometimes called a living will or a power of attorney for health care.
It is a document that tells your doctors and your loved ones whether you
want to be placed on life support, and who will have authority to
access your medical records and consent to treatment for you. (It is a
good idea to name at least one backup as well.) Be sure to discuss your
wishes with the person you nominate as your decision maker. Not everyone
is comfortable with such responsibility. You should also discuss these
things with your loved ones. It's always easier to hear when things are
calm, rather than suddenly learning of your wishes in a crisis
situation.

A Power of Attorney for Finances appoints someone to
handle your money, your property and your bills when you are
incapacitated. The person appointed is called an attorney-in-fact," which has nothing to do with being a lawyer (a lawyer is an attorney at law). The person nominated should be someone who is good with money and responsible enough to care for your property.

Sometimes
the Advance Healthcare Directive and the Power of Attorney are
sufficient, especially if you have few assets and nothing very
complicated. But for many people, having a Trust is also a very good
idea. Think of a Trust as being a special box into which you place your
assets (bank accounts, stocks, your home, rental properties, etc.) The
person you appoint to take care of the box is called the Trustee. This person is NOT the Executor.
An Executor is appointed in a Will, approved by a court, and only has
authority after you die. A Trustee generally does not need court
approval, and can handle things during your lifetime, as well as after
your death. A Trust can provide greater protection and easier management
than relying upon a Power of Attorney alone.

The number one
mistake people make in estate planning is putting things off until it's
too late. Without a directive, your care is left to fate. We all hate to
think about our own mortality, so most of us do nothing. As the saying
goes, "Failing to plan is planning to fail." Don't be the next headline
court case because you failed to provide for your end-of-life wishes.
Don't leave your family unable to mange your affairs without a court
order. With proper planning, you are in control. Make arrangements. It's
unpleasant to think about, but believe me - you'll feel much better
once it's finished.

Thursday, March 7, 2013

In legal terms, an expungement is a legal procedure where someone who is
a first time offender tries to have the records of their offense sealed
by the courts, thus making them unable to be seen in police and federal
criminal databases. When the record is sealed, the legal term commonly
used is that it has been "expunged", essentially making it as if it
never even happened. You should not get the terms "expunge" and "pardon"
confused however, as they both mean very different things in the legal
system. When a criminal record is expunged, as far as everyone is
concerned, the record never existed in the first place. If someone is
granted a pardon, they essentially given forgiveness, but the record
still remains on their profile and is never erased.

There are a number of reasons why someone would seek expungement and
every legal jurisdiction is free to set their own rules regarding how
the procedure is carried out. It is widely accepted that the word
expunge means to take a record away from where it can be seen for
general review. However, a large number of states have provisions set up
so that the expunged records are not gone completely from databases
that are accessible by police officers, judges, who made need the
information to determine future sentencing and lock up facilities, which
may house an inmate for a future conviction.

Keep in mind, though, that not just any crime can be expunged. There are
certain crimes that are eligible and others that are ineligible for
expungement. Most crimes are able to be expunged as long as a certain
number of requirements are met beforehand. Some of these include things
like waiting a certain amount of time between the crime and requesting
expungement, not having anymore related crimes, having less than a
certain number of crimes, the cannot be too serious of an offense, and a
probation period completed. Some of the crimes that are ineligible to
be expunged include felonies where the victim was younger than 18, rape,
sexual assault, corrupting someone who is underage, sexual annoyance
and obscene gestures aimed at or pornography involving an underage
individual.

As mentioned earlier, each jurisdiction can set its own expungement
rules. And each state can determine what can qualify to be expunged, as
well as decide to not allow any records to be expunged whatsoever. If a
record is eligible to be expunged, it can take anywhere 3 months and
sometimes as long as year for more complex crimes. The average should be
around 6 months however.

Wednesday, March 6, 2013

A Trust and a Power of Attorney for Finances serve two separate, but complimentary functions.
A
Power of Attorney for Finances appoints someone to handle your money,
property and bills when you are incapacitated. The person nominated
should be someone who is good with money and responsible enough to care
for your property. The person appointed is called an "attorney-in-fact",
which has nothing to do with being a lawyer. A lawyer is an "attorney
at law". A Power of Attorney for Finances is sometimes called a Durable
Power of Attorney. "Durable" means the Power of Attorney remains valid,
even if you become incapacitated. There can also be a "power of attorney
for healthcare," that is a separate document and unrelated to your
finances. Most lawyers mean a Power of Attorney for Finances when they
say "power of attorney." If they mean the kind that is for healthcare,
they generally say so.
A Living Trust can provide greater
protection and easier management than relying upon a Power of Attorney
alone. Think of a Trust as being a special box into which you place your
assets (bank accounts, stocks, your home, rental properties, etc.) The
person you appoint to take care of the box is called the "Trustee". This
person is NOT the "Executor". An Executor is appointed in a Will,
approved by a court, and only has authority after you die. A Trustee
generally does not need court approval, and can handle things during
your lifetime "and" after your death. This is why it is called a
"living" trust. It is customary (though not required) to name the same
person as Trustee and as attorney-in-fact, so that control of both Trust
and non-Trust financial matters are centralized with one person.
Even
if you have a Trust, you still need a Power of Attorney because it
applies, during your lifetime, to management and control of your
property that is "not" in the Trust. Certain property does not get put
into your Trust during your lifetime. For example:

If you try to title your IRA to your trust, the IRS will treat that
as an early withdrawal of the entire account. Your attorney-in-fact can
direct IRA investments, contributions and withdrawals.

If you're receiving social security, your right to benefits can only
be held personally, not in a Trust. Once a monthly benefit is paid to
you, the amount paid can be placed in your Trust, but not prior to
payment. Your attorney-in-fact can transfer social security payments
into your Trust and access your records with the Social Security
Administration.

Your attorney-in-fact has authority to prepare and sign your
personal tax returns or speak to the I.R.S. about your taxes. Your
Trustee does not.

Your attorney-in-fact, but not your Trustee, can make Medicare benefits elections and enforce your rights under Medicare.

If you forgot to put an asset into your Trust, your attorney-in-fact can make that transfer.

A good estate plan contains both of these important
documents, but if you can only have one, choose the Power of Attorney.
Without it, your loved ones will need a court ordered conservator or
guardian to handle your property. This requires an expense and very
public procedure.

Tuesday, March 5, 2013

Uncontested divorces are generally cheaper and less of a hassle, making
them very popular options for couples who are pursuing a divorce. One of
the most hotly contested issues in a divorce is child custody, although
when an uncontested divorce is pursued both parties must agree on an
arrangement. Otherwise, the divorce turns from an uncontested one into a
contested one. Lawyers may still be consulted during the divorce
process when the other spouse does not contest it, but generally both
parties must agree on all issues outlined in the divorce agreement
including child custody, child support, visitation rights as well as
asset division and other legal matters. The moment that any of these
items cannot be agreed upon, the divorce turns contested in which case
the Court may ultimately determine the terms of the agreement and child
custody.

Whether to pursue a 50/50 child custody arrangement or a 60/40
arrangement or any other division of time spent with the child is
largely up to the parents in an uncontested divorce. Cases of joint
physical custody typically involve an arrangement that has both parents
spending relatively equal amounts of time with the child. In cases of
sole physical custody, the child may live with one parent, but that does
not mean the non-custodial parent is not able to see the child.
Visitation rights (holidays, weekends, etc.) are still involves in many
cases of sole physical custody. Joint legal custody, which means both
parents may make decisions involving the child's health care, religion,
education, etc., may be present even if sole physical custody is
present.

When determining the child custody arrangement while pursuing an
uncontested divorce, it is important that both parties be fair with the
other. Joint custody, whether physical or legal, should only be an
option if both parents provide a safe, nurturing environment for the
child. If this is the case with both parents, finding a way to divide
the time equally will be helpful in the pursuit of a non-disputed
divorce. The parents may also opt for sole physical custody in which one
parent sees the child on weekends and holidays while still pursuing an
uncontested divorce as long as both parties agree to the arrangement.

Monday, March 4, 2013

When in the process of creating a new company, the business
organizers have several options to choose from. The decision will impact
tax status, liability and how the profits are shared. Although the
options depend on the type of business that is being formed, owners can
choose from corporation, sole proprietorship, partnership or the
relatively new limited liability company (LLC).

The LLC is a
flexible option for organizing the owners of a company. The LLC partners
are called associates. Individuals, partnerships or any other business
entity can all be associates in an LLC. The main benefit for choosing
this method is that all owners are protected from any losses that the
LLC might incur. The company is an entity on its own. Associates are not
personally responsible for taxes, and if it is sued, only the company
itself will bear any responsibility from damages. The main benefit to
forming an LLC for the associates is the ease in which it is possible to
get the profits. The losses stay on the books of the company.

This
form of a company has been on the law books for over 30 years. In 1977,
it began in Wyoming, but adoption was slow until Florida followed suit
in 1982. It was in the 1990's that forming a company as an LLC really
took off and started becoming a popular option that took the place of
the other business ownership formats. Since then, it has remained on of
the most popular options when creating a new business.

The
structure of an LLC is simple. There can be an infinite number of
partners in the entity, or there can be just one. Although corporations
require bylaws and annual meetings for shareholders, these are not
required by an LLC. The only requirement is to record the formation of
the company with the secretary of state and pay the proper filing fees.

Among
the many benefits of forming an LLC, there are a few disadvantages to
associates who choose to structure their company this way. Since each
state has its own laws governing LLCs, your company will be treated
differently state to state. The earnings of the members of an LLC are
also subjected to a self employment tax. This is not the case for
corporations where profits are passed on as distributions and are not
taxed this way. The final disadvantage only applies in certain states.
Some states will apply a tax to an LLC but not to a business formed as a
partnership. In those states, it may make more financial sense to form a
partnership instead of an LLC.

Sunday, March 3, 2013

Putting
up a business is a good way to earn money. While it can be rewarding,
it can also come with a few potential risks. For instance, starting a
corporation during challenging economic times may not be ideal. This can
cause substantial losses especially when you are putting up the
corporation on your own for the first time. Forming an LLC can be your
best option when looking for an alternative that is less formal but is
as flexible as a corporation.

What is an LLC?

A
Limited Liability Company or LLC is a relatively new business model
slowly becoming popular among small business in the US. This type of
business combines the limited liability feature of a corporation and the
operational flexibility of a partnership.

The
concept of an LLC was introduced in the late 70s. In other countries,
this business model came much earlier and has different statutes and
guidelines than that of the US.

Advantages of forming an LLC

LLCs
in the United States normally call its partners "members." These
members benefit from the incorporation while maintaining small business
setups. They also report losses and profits on their individual tax
returns much like in a partnership or proprietorship. On the other hand,
members also have protection from personal liability. This means they
are not responsible for any company debts just like in the setting of a
corporation.

Moreover,
if the company encounters any legal trouble, only the company assets
are at risk. Credit companies cannot go after any of the members of the
LLC and their respective personal assets. This is the reason many people
today want to form an LLC.

How to form an LLC

The
first step is to choose a business name. It must be distinct from other
businesses in the state. It also needs to have a clear labeling as an
LLC. There are states that do not allow using certain words in the name
of the LLC. "Bank" and "Insurance" are two examples. Make sure to choose
the proper words for the company.

The
next step is to file for the Articles of Organization. This document
contains a complete overview of your business. The Articles of
Organization include basic information such as your business name,
address, and its members. It also documents the stocks that your LLC may
issue and legitimizes the operation of your enterprise.

Another
important document is the Operating Agreement. It contains the written
code of conduct of your company. This actually works as a binding
contract among the members. This document also needs formal adaptation
and amendment. While this may be not required in most states, people who
want to form an LLC are advised to at least draft one.

Like
other business models, you also have to secure the necessary licenses
and permits. These may vary depending on the nature of the business and
the state laws. Document filing companies can be of great help when you
are too busy to file the necessary documents.